In this chapter, we continue our discussion of situations in which the law imposes provisions irrespective of the intention of the parties. We now focus on particular policies. Under the Regulation, three specifically defined policies are given special treatment. These concern employees, consumers and insurance. In a broad sense, all three could be regarded as aspects of business regulation. In countries outside Europe – and this chapter will be mainly concerned with such countries – the categories are more fluid. The basic issue, however, is the same: when should non-derogable provisions of law be applied if they are not part of the proper (applicable) law?

Before we consider different policy areas, however, we must first look at some theoretical issues.

Legal principles

In the common-law world, there is nothing exactly similar to Article 9 of the Rome I Regulation. In the United States, § 187(2) of the Restatement contains the rules concerning the application of non-derogable provisions of a legal system other than that chosen by the parties. These were discussed in Chapter 25, § 5, above. They apply to both forum provisions and foreign provisions.

In the United Kingdom and the Commonwealth, there is no equivalent to this. However, non-derogable provisions of the forum, if contained in a statute, may be applied under the doctrine of an ‘overriding statute’; if they constitute a rule of common law, they may be applied under the doctrine of public policy.